If you were watching the Senate Judiciary Committee hearings
Thursday, chances are you didn’t see it coming. Senator Arlen
Specter was questioning Attorney General Alberto Gonzales. The
senator lobbed a long softball question about federal funds for
mentoring programs in Philadelphia. Try to imagine a more
sleep-inducing topic.
Then things took a sudden turn for the interesting. Specter
asked about the Bush administration’s claims to be able to hold
prisoners at the military detention facility in Guantanamo Bay,
Cuba, indefinitely. There has been an ongoing legal struggle over
the prisoners’ status, and Specter wanted to know how the
administration can continue to deny the right of habeas
corpus to the “detainees.”
Habeas corpus is the right for prisoners to petition
courts to force the government to either show its evidence (produce
the “body”) or cut the guy loose. It was codified both in the Magna
Carta and the U.S. Constitution. It’s part of the Common Law and
about as American as Mom, the Super Bowl, and apple pie. Everybody
gets his day in court.
The AG tried to use legalese to get around the question. He
claimed the Supreme Court decision Specter was referring to “dealt
only with the statutory right to habeas, not the
constitutional right to habeas.” That was a mistake,
because Specter was in a combative mood.
“Well, you’re not right about that,” the senator said. “It’s
plain on its face [the justices] are talking about the
constitutional right to habeas corpus. They talk about
habeas corpus being guaranteed by the Constitution, except
in cases of an invasion or rebellion.”
Gonzales had another run at it and ended up eating turf:
GONZALES: [T]here is no express grant
of habeas in the Constitution. There is a prohibition
against taking it away. But it’s never been the case, and I’m not a
Supreme…
SPECTER: Now, wait a minute. Wait a minute. The
Constitution says you can’t take it away, except in the case of
rebellion or invasion. Doesn’t that mean you have the right of
habeas corpus, unless there is an invasion or
rebellion?
GONZALES: I meant by that comment, the
Constitution doesn’t say, “Every individual in the United States or
every citizen is hereby granted or assured the right to
habeas.” It doesn’t say that. It simply says the right of
habeas corpus shall not be suspended except by…
SPECTER: You may be treading on your
interdiction and violating common sense, Mr. Attorney General.
GONZALES: Um…
The only thing that saved the attorney general from further
embarrassment was that Judiciary Chairman Patrick Leahy interrupted
him to speechify against the Bush administration. Leahy’s response
helped to diminish the explosive nature of Gonzales’s response by
casting it in terms of the usual partisan back-and-forth.
Many liberals were duly outraged. A blogger for Rolling
Stone called the attorney general a “human Constitution
shredder.” That may be hyperbole but the Gonzales-Specter exchange
did lead to two revelations that should disturb Americans of all
political persuasions.
First, we have an attorney general who is unclear on what a
“right” is and how the Constitution confers rights. The First
Amendment grants freedom of speech by saying “Congress shall make
no law” that impedes that freedom. By Gonzales’s logic, that does
not count as a right.
Two, Gonzales wrote off far too much in defense of his
government’s policies. He didn’t have to do that. He could have
mounted a more limited case for not granting habeas corpus
to the men — designated as “enemy combatants” — who have been
held for years at Gitmo. The attorney general could have pressed
the distinction between citizens and noncitizens, and soldiers and
enemy combatants while he was at it. But he did not do that.
Instead, Gonzales attempted to diminish a fundamental right that
has been held by the citizens of this Republic since before the
country’s founding. Why?
